Eric Durrell Jackson v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia
ERIC DURRELL JACKSON
MEMORANDUM OPINION ∗∗ BY
v. Record No. 0388-99-2 JUDGE DONALD W. LEMONS
MAY 23, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Conrad C. Lewane for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Eric Durrell Jackson appeals his conviction for malicious
wounding. On appeal, he argues that (1) he proved self-defense,
(2) the evidence was insufficient to prove malice, and (3) the
trial court erred by considering his juvenile offenses when
computing his total point score for purposes of determining
sentencing guidelines recommendations.
∗
Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
In this bench trial, the evidence demonstrated that on
August 9, 1998, Jackson was involved in an altercation with
Alicia Venable in the backyard of her apartment building.
According to Venable, Jackson accused her of taking "some coke
from one of his trash cans." Venable denied the allegation, and
Jackson became "emotional." Venable testified that during the
argument, Jackson was "swinging his hand." She testified that
Jackson "was saying that the girl told him I had took his stuff
out of the trash can. I thought he was going to swing." She
later stated that Jackson "wasn't swinging," that she "didn't
know if he was going to swing or not," but that she thought he
"was going to swing at [her]."
While arguing with Jackson, Venable reached into her pocket
with her right hand and grasped a closed switchblade knife that
she had retrieved earlier from her home to protect herself from
the woman who accused her of taking the "coke" from Jackson's
trash can. 1 According to Venable, when Jackson swung one of his
hands, she moved her right hand up for protection while still
holding the closed switchblade. Jackson hit Venable in the
face, and she fell to the ground on top of a fire hydrant and
nearby sewer. According to Venable's testimony, nobody was
present in the immediate area except Jackson and her and Jackson
1
Venable testified that the woman was armed with a knife.
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kicked her either before or after the punch. After the blow,
Jackson's mother, Lillian, came out of her house to assist
Venable. Lillian took Venable to the hospital where she
received seventeen stitches in her head and was treated for a
fractured jaw.
At trial, the Commonwealth's attorney asked Venable whether
her injuries "were from the punch or punches that [she] received
from the defendant." Venable responded affirmatively again and
was asked to describe her injuries. She stated, "My head was
bust open, I got about 17 stitches, and my jaw was fractured."
At the conclusion of her direct examination, the Commonwealth's
attorney asked Venable whether the seventeen stitches she
received were "a result of the one punch." Venable stated,
Yeah, but it's a fire hydrant where the
sewer hole's right there where I landed at,
and that could have bust my head open. I
can't say that the punch bust my head open.
I landed on top of that great big sewer
thing there. My head could have hit that.
Jackson's mother testified that she came out of the house
while appellant and Venable were arguing and saw Venable
swinging an open knife at him. As she ran over to them, she
claimed to have seen Jackson hit Venable one time and Venable
fall. Appellant's mother could not, however, testify where
Jackson hit Venable.
Antonio Kidd, Jackson's neighbor, testified that he was in
his house when he heard an argument outside. He walked to the
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door and saw Venable holding an open knife and waving it in
Jackson's face. Kidd stated that as soon as Jackson hit
Venable, he walked back inside because "it wasn't [his]
business" and that he did not see where Jackson hit Venable nor
did he see her fall to the ground. Kidd testified that Lillian
Jackson was not outside during the altercation.
Jackson testified that earlier that day he was playing a
"dice game" outside when police came and he fled. During his
flight, he dropped some money and when he returned, it was gone.
He later accused Venable of taking the money. He said that she
pulled a knife on him and was swinging it at him and that he
"just hit her." He claimed the knife was open and that he
thought Venable would stab him.
After all the evidence was presented, the judge stated,
"The Court has reviewed the jury instruction on self-defense,
both the jury instruction on the defendant without fault and the
jury instruction on the defendant with fault, and I'm ready to
reach a decision." The trial court found Jackson guilty of
malicious wounding. At the sentencing hearing the trial court
considered sentencing guidelines utilizing juvenile
adjudications in 1995 for abduction, use of a firearm in the
commission of a felony and carjacking. 2
2
In 1995, Jackson pled guilty to the crimes of abduction,
use of a firearm in the commission of a felony and carjacking.
He was a juvenile at the time and was placed on probation and
given community service. For purposes of sentencing Jackson for
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II. SELF-DEFENSE
On appeal, Jackson contends that the evidence at trial
proved that Venable was struck only after she swung an open
knife near his face. "Self-defense is an affirmative defense
which the accused must prove by introducing sufficient evidence
to raise a reasonable doubt about his guilt." Smith v.
Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993).
"The trier of fact determines the weight of evidence in support
of a claim of self-defense," Gardner v. Commonwealth, 3 Va. App.
418, 426, 350 S.E.2d 229, 233 (1986), and "[a] trial judge's
factual findings will not be disturbed on appeal unless plainly
wrong or without evidence to support them." Smith, 17 Va. App.
at 71, 435 S.E.2d at 416.
Although it was a bench trial, the trial judge consulted
the Virginia Model Jury Instructions to determine the elements
of self-defense. The Model Jury Instruction for self-defense
"With Fault" states:
If you find from the evidence that the
defendant was to some degree at fault in
provoking or bringing on the [fight], and if
you further find that when attacked:
(1) he retreated as far as he safely could
under the circumstances
(2) in a good faith attempt to abandon the
fight; and
the malicious wounding conviction, when computing the points for
Jackson's convictions as a juvenile, he has a total of 134
points, or a range under the guidelines of 6 years to 13 years,
4 months. Without considering those convictions, Jackson would
have 44 points, or a range of 1 year, 10 months to 5 years.
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(3) made known his desire for peace by word
or act; and
(4) he reasonably feared, under the
circumstances as they appeared to him, that
he was in danger of bodily harm; and
(5) he used no more force that [sic]
reasonably necessary to protect himself from
the threatened harm, then you shall find the
defendant not guilty.
Even if Jackson was entitled to defend himself, the evidence
viewed in the light most favorable to the Commonwealth is
sufficient to prove that he was "to some degree at fault in
provoking or bringing on the fight," that he did not retreat as
far as he safely could under the circumstances, that he did not
make a good faith attempt to abandon the fight, and that he did
not make known his desire for peace. See Lynn v. Commonwealth,
27 Va. App. 336, 499 S.E.2d 1 (1998), aff'd, 257 Va. 239, 514
S.E.2d 147 (1999). Accordingly, we hold that the trial judge
properly rejected Jackson's claim of self-defense.
III. SUFFICIENCY OF THE EVIDENCE -- MALICE
When an appellant challenges the sufficiency of the
evidence upon which a conviction is based, this Court must view
the evidence in the light most favorable to the Commonwealth,
granting to the Commonwealth all reasonable inferences fairly
deducible from it. See Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). The credibility assigned
to a witness, the weight accorded the testimony and the
inferences to be drawn from proven facts are matters solely for
the fact finder's determination. See Long v. Commonwealth, 8
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Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). Because it hears
and observes the witnesses, the judgment of a trial court
sitting without a jury is entitled to the same weight as a jury
verdict and should not be set aside unless plainly wrong or
without evidence to support it. See Josephs v. Commonwealth, 10
Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).
According to "[f]undamental principles," the Commonwealth
must "prove every essential element of the offense beyond a
reasonable doubt." Moore v. Commonwealth, 254 Va. 184, 186, 491
S.E.2d 739, 740 (1997). For circumstantial evidence to prove
guilt beyond a reasonable doubt, it must be wholly consistent
with guilt and wholly inconsistent with innocence. See Bishop
v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984).
Code § 18.2-51 provides in pertinent part:
If any person maliciously . . . wound[s] any
person or by any means cause him bodily
injury, with the intent to maim, disfigure,
disable, or kill, he shall . . . be guilty
of a Class 3 felony. If such act be done
unlawfully but not maliciously, with the
intent aforesaid, the offender shall be
guilty of a Class 6 felony.
Thus, the statute defines two crimes: malicious wounding and
the lesser-included offense of unlawful wounding. The element
of malice distinguishes the two, and it is the Commonwealth's
burden to establish that element. See Miller v. Commonwealth, 5
Va. App. 22, 24, 359 S.E.2d 841, 842 (1987).
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On appeal, Jackson argues that the Commonwealth failed to
prove the element of malice.
It is clear that Jackson's punch caused bodily injury to
Venable. Venable's testimony, when viewed in the light most
favorable to the Commonwealth, was that her jaw was fractured by
the punch, not by the subsequent fall.
Q Did you have any injuries?
A Yes, I did.
Q And were they received from the punch or
punches that you received from the
defendant?
A Yes.
Q Tell the Court what your injuries were.
A My head was bust open, I got about 17
stitches, and my jaw was fractured.
* * * * * * *
Q Now, can you point on your head as to
where you received those stitches.
A Across here.
Q Is that a result of the one punch that
you remember?
A Yeah, but it's a fire hydrant where the
sewer hole's right there where I landed at,
and that could have bust my head open. I
can't say the punch bust my head open. I
landed on top of that great big sewer thing
there. My head could have hit that.
Q You landed on top of that as a result of
the punch that the defendant gave you?
A Yeah.
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Venable initially attributed both the gash in her head and the
fractured jaw directly to the punch. Later in her testimony,
however, she clarified that the gash may have been caused as a
result of falling against the fire hydrant. The evidence shows
that Jackson's punch fractured Venable's jaw and sent her to the
ground whereupon she hit her head on a fire hydrant causing the
gash on her head.
"Malice inheres in the doing of a wrongful act
intentionally, or without just cause or excuse, or as a result
of ill will." Dawkins v. Commonwealth, 186 Va. 55, 61, 41
S.E.2d 500, 503 (1947). However,
[m]alice is not confined to ill will, but
includes any action flowing from a wicked or
corrupt motive, done with an evil mind or
wrongful intention, where the act has been
attended with such circumstances as to carry
in it the plain indication of a heart
deliberately bent on mischief. Malice is
implied from any willful, deliberate and
cruel act against another.
Williams v. Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202,
205 (1991). "Ordinarily, the fist is not regarded as a
dangerous or deadly weapon . . . [; therefore, it follows that
under] ordinary circumstances no malice may be inferred from
such a blow." Roark v. Commonwealth, 182 Va. 244, 250, 28
S.E.2d 693, 696 (1944).
The evidence viewed in the light most favorable to the
Commonwealth proved that Jackson, in the midst of an altercation
that he was in some degree at fault in provoking, struck
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Venable. Although the force of a single punch was sufficient to
injure Venable severely, we cannot say that this record contains
sufficient evidence from which the fact finder could have
inferred malice. See, e.g., Dawkins, 186 Va. 55, 41 S.E.2d 500;
Williams, 13 Va. App. 393, 412 S.E.2d 202; Campbell v.
Commonwealth, 12 Va. App. 476, 405 S.E.2d 1 (1991) (en banc).
This attack consisted of one punch and apparently one kick.
There is no proof of prior animosity between Jackson and
Venable. The evidence does not indicate that threats preceded
the attack. After striking the victim, Jackson apparently
walked away from her without intervention by a third party. Cf.
Shackleford v. Commonwealth, 183 Va. 423, 32 S.E.2d 682 (1945);
Williams, 13 Va. App. 393, 412 S.E.2d 202. Because the gash to
Venable's head was apparently caused by the fortuitous falling
on a fire hydrant, an inference of malice may not be drawn from
the extent of that injury.
Accordingly, the evidence was insufficient to support a
finding of malice and, consequently, insufficient to sustain the
malicious wounding conviction.
IV. CONSIDERATION OF JACKSON'S JUVENILE OFFENSES
The trial court imposed a sentence of twenty years with ten
suspended. Defense counsel's motion that the court re-sentence
Jackson without considering his juvenile convictions was denied.
On appeal, Jackson claims that the trial court should not have
considered the previous offenses that he committed as a juvenile
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when computing the sentencing guidelines recommendation because
Code § 16.1-308 (repealed in 1997) was clear and unambiguous in
its language that, "A finding of guilty on a petition charging
delinquency, under the provisions of this law shall not operate
to impose any of the disabilities ordinarily imposed by a
conviction for a crime . . . ."
We note from the outset that the sentencing guidelines "are
not binding on the trial judge; rather, the guidelines are
merely a 'tool' to assist the judge in fixing an appropriate
punishment." Belcher v. Commonwealth, 17 Va. App. 44, 45, 435
S.E.2d 160, 161 (1993) (citations omitted); see Code
§ 19.2-298.01; Smith v. Commonwealth, 26 Va. App. 620, 496
S.E.2d 117 (1998). When Jackson was sentenced for the malicious
wounding conviction, the applicable law was Code § 17.1-805(B),
not Code § 16.1-308. Code § 17.1-805(B) provides for the
formulation of discretionary felony sentencing guidelines and
specifically states that "previous convictions shall include
prior adult convictions and juvenile convictions and
adjudications of delinquency based on an offense which would
have been at the time of conviction a felony if committed by an
adult under the laws of any state, the District of Columbia, the
United States or its territories." See Moses v. Commonwealth,
27 Va. App. 293, 302, 498 S.E.2d 451, 455-56 (1998); Harris v.
Commonwealth, 26 Va. App. 794, 807, 497 S.E.2d 165, 171 (1998).
Even in 1995, the predecessor to Code § 17.1-805(B), and the
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applicable law when Jackson committed the juvenile offenses,
allowed for the trial court to consider, in its discretion,
juvenile convictions for purposes of an adult sentencing
hearing. See Code § 17-237.
"It is well settled that when the maximum punishment is
prescribed by statute, 'and the sentence [imposed] does not
exceed that maximum, the sentence will not be overturned as
being an abuse of discretion.'" Valentine v. Commonwealth, 18
Va. App. 334, 339, 443 S.E.2d 445, 448 (1994) (quoting Abdo v.
Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977)).
We reverse Jackson's malicious wounding conviction and
remand his case to the trial court for retrial on an offense no
greater than unlawful wounding. Jackson's juvenile convictions
may be considered for sentencing purposes.
V. CONCLUSION
For the reasons stated above, we hold that Jackson's claim
of self-defense was properly rejected by the trial court but
that the evidence was insufficient to prove that Jackson acted
with malice. The conviction for malicious wounding is reversed
and remanded for retrial on an offense no greater than unlawful
wounding.
Reversed and remanded.
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